Phelan v. Granite Bituminous Paving Co.
Supreme Court of Missouri
Appeal from St. Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) The demurrers to the evidence should have Seen sustained: both that offered at the close of plaintiff’s Case, and that offered at the close of the whole case. Defendant owed plaintiff no duty, and therefore did not fail in the performance of any duty, (a) Duty lies at the foundation of negligence; and if defendant owed plaintiff no duty, it is not liable to plaintiff.
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Appeal from St. Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) The demurrers to the evidence should have Seen sustained: both that offered at the close of plaintiff’s Case, and that offered at the close of the whole case. Defendant owed plaintiff no duty, and therefore did not fail in the performance of any duty, (a) Duty lies at the foundation of negligence; and if defendant owed plaintiff no duty, it is not liable to plaintiff. Curley v. Railroad, 104 Mo. 223; Roddy v. Railroad, 104 Mo. 244; Atherton v. Coal Co., 106 Mo. 591; 'Barry v. Calvary Cemetery, 106 Mo. App. 362;…
1Opinion of the CourtLamm, J.
Negligence—damages, $7500. Defendant appeals. Assigned to Division Two, the cause comes into Banc on its order on a motion for rehearing.
Error is assigned mainly on overruling a demurrer to the evidence (offered twice and twice refused) and on instructions — the breadth of the assignments seeking a close and full review of testimony and pleadings.
The negligence charged is in operating a steam street-roller on Laclede avenue in St. Louis. The petition states that as plaintiff was lawfully driving a one-horse wagon to the west on the north side of said avenue, a public street, the defendant,…
2Cases cited17 opinions
- Mockowik v. Kansas CitySupreme Court of Missouri · 1906
- Newcomb v. Boston Protective DepartmentMassachusetts Supreme Judicial Court · 1888
- Klockenbrink v. St. Louis & Meramec River RailroadSupreme Court of Missouri · 1903
- District of Columbia v. MoultonSupreme Court of the United States · 1901
- Holloway v. Kansas CitySupreme Court of Missouri · 1904
12 more not listed; retrieve them via the Exa API.
3Cited by22 opinions
- Stack v. General Baking Co.Supreme Court of Missouri · 1920
- Maginnis v. Missouri Pacific Railway Co.Supreme Court of Missouri · 1916
- Waldmann v. Skrainka Construction Co.Supreme Court of Missouri · 1921
- Presley v. C. M. Allen & Co.Supreme Court of North Carolina · 1951
- Welch v. McGowanSupreme Court of Missouri · 1914
17 more not listed; retrieve them via the Exa API.